United States District Court, S.D. California
KORY T. O'BRIEN, CDCR #AM-1378, Plaintiff,
ALDO GARCIA, Correctional Plant Ops. Supervisor; JORGE SANTANA, Associate Warden; DANIEL PARAMO, Retired Former Warden; RAQUEL BUCKEL, Associate Warden; PATRICK COVELLO, Warden; C. MURPHY, Appeals Examiner; M. VOONG, Chief - Office of Appeals, Defendants.
1) DISMISSING DEFENDANTS AND CLAIMS PURSUANT TO 28 U.S.C.
§ 1915(e)(2) AND 28 U.S.C. § 1915A(b) AND 2)
DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF FIRST AMENDED
COMPLAINT UPON DEFENDANT GARCIA PURSUANT TO 28 U.S.C. §
1915(d) AND Fed.R.Civ.P. 4(c)(3)
John A. Houston United States District Judge
Kory T. O'Brien, a prisoner proceeding pro se and
incarcerated at Richard J. Donovan Correctional Facility
(“RJD”), in San Diego, California, filed this
civil rights action pursuant to 42 U.S.C. § 1983 on June
14, 2019. See Compl., ECF No. 1.
original Complaint, Plaintiff claimed various RJD Wardens, a
“Plant Ops” Supervisor, and two inmate appeals
officials denied him equal protection and exposed him to
harmful conditions of confinement in July and August 2017,
and then retaliated against him in May 2019 after he
continued to complain and file multiple grievances.
See Compl., at 1-4, 8, 14. He sought injunctive
relief and “damages to be claimed at a later
date.” Id. at 19. Plaintiff did not pay the
civil filing fee at the time of filing, but instead filed a
Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).
August 26, 2019, the Court granted Plaintiff's Motion to
Proceed IFP, but dismissed his Complaint sua sponte
and in its entirety based on his failure to state a claim
upon which relief can be granted pursuant to the mandatory
screening required by 28 U.S.C. § 1915(e)(2) and §
1915A(b). See ECF No. 6. Plaintiff was provided
notice of his pleading deficiencies, and was granted leave to
amend them. Id. at 8-17.
September 30, 2019, Plaintiff filed a First Amended Complaint
(“FAC”) (ECF No. 7) re-naming all the same
Defendants and re-alleging four First, Eighth, and Fourteenth
Amendment “Counts” or causes of action.
See FAC at 2-23. He continues to seek injunctive
relief and an unspecified amount of damages. Id. at
Screening pursuant to 28 U.S.C. § 1915(e)(2) and §
Standard of Review
Plaintiff is a prisoner and is proceeding IFP, his FAC, like
his original Complaint, also requires a pre-answer screening
which the Court conducts sua sponte pursuant to 28
U.S.C. § 1915(e)(2) and § 1915A(b). As Plaintiff is
now aware, under these statutes, the Court must dismiss a
prisoner's IFP complaint, or any portion of it, which is
frivolous, malicious, fails to state a claim, or seeks
damages from defendants who are immune. See Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v.
Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
(discussing 28 U.S.C. § 1915A(b)). “The purpose of
[screening] is ‘to ensure that the targets of frivolous
or malicious suits need not bear the expense of
responding.'” Nordstrom v. Ryan, 762 F.3d
903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012); see also Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (noting that screening
pursuant to § 1915A “incorporates the familiar
standard applied in the context of failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6)”). Rule
12(b)(6) requires a complaint “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted); Wilhelm, 680 F.3d at 1121.
factual allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Determining whether a
complaint states a plausible claim for relief [is] ... a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. The “mere possibility of misconduct”
or “unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
Allegations in FAC
did previously, Plaintiff divides the claims in his FAC into
four separate causes of action. In Count 1, he claims
Defendant A. Garcia, a Plant Operations Correctional
Supervisor at RJD, violated his First Amendment rights by
retaliating against him for having filing numerous CDCR 22s,
CDCR 1824s and CDCR 602 inmate appeals related to the lack of
clean air vents and cable and power outlets in his
cell.See FAC at 4-8. Specifically,
Plaintiff claims Garcia, who is “second in
command” and responsible for approving all “work
orders, ” either authorized or ...